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Majority sides with hotel in lawsuit stemming from molestation

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A divided Indiana Supreme Court affirmed summary judgment for a hotel, its owner and the hotel franchisor that the hotel’s insurance company had no duty to defend a civil complaint brought by a minor motel guest who was molested by an off-duty employee.

R.H.M. was a guest at the New Castle Holiday Inn Express owned by Anil Megha when employee Michael Forshey entered his locked room at night and molested him. Forshey has been convicted of child molestation. R.H.M.’s mom sued the hotel, the franchisor Holiday Hospitality and Megha, claiming, among other things, battery, negligent retention and supervision, and negligent hiring.

AMCO Insurance Co., which insured the Holiday Inn Express, claimed it owed no coverage for any liability from the complaint and it had no duty to defend any of the defendants. Holiday Hospitality and Megha were listed as additional insureds. The policy expressly disclaimed coverage for acts of molestation or abuse by excluding any bodily injury or personal or advertising injury arising from the actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of the insured.”

The trial court ruled in favor of the defendants, but the Indiana Court of Appeals reversed, finding a genuine issue of material fact as to whether R.H.M. was in the care, custody or control of the hotel at the time of the molestation.

In Holiday Hospitality Franchising, Inc. v. AMCO Insurance Company, 33S01-1206-CT-312, Justice Steven David, writing for the majority, affirmed summary judgment for the insurance company. Focusing on the “care, custody or control” portion of the policy and using those terms’ definitions from Webster’s Dictionary, David and Justices Mark Massa and Loretta Rush found the child was not in the custody or control of the hotel, but he was in the care of the hotel at the time of the molestation.

“Simply put, we believe these facts reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract,” David wrote.  
 
Chief Justice Brent Dickson concurred in a separate opinion, believing the proper understanding of “care” is established by Indiana law that a hotel guest is considered a business invitee and is entitled to a reasonable duty of care. In this case, “care” exists as a matter of law, so the exclusion applies.

Justice Robert Rucker dissented, believing it should be up to the trier of fact as to whether R.H.M. was under the control or care of the hotel.

 

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  1. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

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  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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